SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 3, 1969
IN THE MATTER OF THE PROBATE OF THE WILL OF ROSA RIZZO, DECEASED
Appeal from decree and order of Erie Surrogate's Court, denying probate of will; order denied motion to set aside verdict.
Goldman, P. J., Del Vecchio, Witmer, Moule and Bastow, JJ.
Memorandum: There was no evidence of fraud and the evidence as to undue influence was circumstantial and not substantial enough to sustain the jury's finding. We believe, however, that under the circumstances contestants should be given an opportunity to retry the issue of fraud and undue influence.
Decree and order insofar as appealed from unanimously reversed on the law and facts and a new trial granted on the question of whether the will was the product of fraud or undue influence, with costs to abide the event.
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